Date: 20090414
Docket:
IMM-3309-08
Citation: 2009 FC 371
Ottawa, Ontario, April 14,
2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JAYANTHAN
PALAGURU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the
decision of a Pre-Removal Risk Assessment (PRRA) Officer (Officer) dated June
6, 2008 (Decision), refusing the Applicant’s PRRA.
BACKGROUND
[2]
The
Applicant is a 27-year-old Sri Lankan national who came to Canada as a
permanent resident in 1996 after being sponsored by his father, a refugee who
was targeted by the Liberation Tigers of Tamil Eelam (LTTE) because he was
against the LTTE and the creation of an independent Tamil state.
[3]
The
Applicant was ordered removed from Canada on November 25, 2004, due to
criminality within Canada. He appealed this decision to the Immigration
and Refugee Board’s Immigration Appeal Division (IAD) but his appeal was
dismissed on January 26, 2006. The Federal Court rejected his application for
leave to review that decision on August 2, 2006. The Applicant then applied
for a PRRA on April 5, 2006, and a negative decision was issued June 6, 2008.
It is this last decision that is the subject of the current judicial review.
DECISION UNDER REVIEW
[4]
The
Applicant claims a number of fears if he is returned to Sri Lanka, including
the fear of forcible conscription by the LTTE, various forms of persecution
from Tamil militants, including torture, kidnapping or death, as well as extortion
by the LTTE, police, armed forces, criminal gangs and paramilitary
organizations. His fear is based on his family association and his identity as
a young Tamil male from the East of the country.
[5]
The
Officer reviewed the IAD decision, examined documentary material submitted by
the Applicant and conducted an independent review of the country conditions at
the time the Decision was made.
[6]
The
Officer concluded that there was no more than a mere possibility of a risk of
persecution or that, on a balance of probabilities, the Applicant would be in
danger of torture, a risk of cruel and unusual treatment or a risk to his
life. The Officer also found that the Applicant would be able to avail himself
of state protection and had an internal flight alternative (IFA) in the
capital, Colombo.
STATUTORY PROVISIONS
[7]
The following provisions of the Act are applicable in these
proceedings:
|
112. (1) A person in Canada, other than a person referred to
in subsection 115(1), may, in accordance with the regulations, apply to the
Minister for protection if they are subject to a removal order that is in
force or are named in a certificate described in subsection 77(1).
2) Despite subsection (1), a person may not apply for
protection if
(a) they are the subject of an authority to
proceed issued under section 15 of the Extradition Act;
(b) they have made a claim to refugee protection
that has been determined under paragraph 101(1)(e) to be ineligible;
(c) in the case of a person who has not left
Canada since the application for protection was rejected, the prescribed
period has not expired; or
(d) in the case of a person who has left Canada since the
removal order came into force, less than six months have passed since they
left Canada after their claim to refugee protection was determined to be
ineligible, abandoned, withdrawn or rejected, or their application for
protection was rejected.
(3) Refugee protection may not result from an application
for protection if the person
(a) is determined to be inadmissible on grounds of
security, violating human or international rights or organized criminality;
(b) is determined to be inadmissible on grounds of
serious criminality with respect to a conviction in Canada punished by a term
of imprisonment of at least two years or with respect to a conviction outside
Canada for an offence that, if committed in Canada, would constitute an
offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years;
(c) made a claim to refugee protection that was
rejected on the basis of section F of Article 1 of the Refugee Convention; or
(d) is
named in a certificate referred to in subsection 77(1).
|
112. (1) La personne se trouvant au Canada et qui
n’est pas visée au paragraphe 115(1) peut, conformément aux règlements,
demander la protection au ministre si elle est visée par une mesure de renvoi
ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
(2) Elle n’est pas admise à demander la
protection dans les cas suivants :
a) elle est visée par un arrêté introductif d’instance pris au titre de
l’article 15 de la Loi sur l’extradition;
b) sa demande d’asile a été jugée irrecevable au titre de l’alinéa
101(1)e);
c) si elle n’a pas quitté le Canada après le rejet de sa demande de
protection, le délai prévu par règlement n’a pas expiré;
d) dans le cas contraire, six mois ne se sont pas écoulés depuis son
départ consécutif soit au rejet de sa demande d’asile ou de protection, soit
à un prononcé d’irrecevabilité, de désistement ou de retrait de sa demande
d’asile.
(3) L’asile ne peut être conféré au demandeur
dans les cas suivants :
a) il est interdit de territoire pour raison de sécurité ou pour
atteinte aux droits humains ou internationaux ou criminalité organisée;
b) il est interdit de territoire pour grande criminalité pour
déclaration de culpabilité au Canada punie par un emprisonnement d’au moins
deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada
pour une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
c) il a été débouté de sa demande d’asile au titre de la section F de
l’article premier de la Convention sur les réfugiés;
d) il est nommé au certificat visé au paragraphe 77(1).
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ISSUES
[8]
The
Applicant raises the following issues:
1.
Did
the Officer err by ignoring evidence or considering irrelevant evidence?
2.
Did
the Officer err by relying on extrinsic evidence without providing the
Applicant with an opportunity to comment?
3.
Did
the Officer err by failing to allow the Applicant an opportunity to address the
issue of an IFA?
4.
Did
the Officer err by applying the standard of certainty in assessing the risk
faced by the Applicant?
ANALYSIS
[9]
The
Applicant’s fundamental complaint in this application is that he was given no
opportunity to address the IFA findings of the Board that are the basis of the
Decision.
[10]
In
the context of a refugee claim, there is an onus upon the Minister and the Board
to warn a claimant that an IFA is going to be raised. The rationale for this
was explained by Justice Linden in Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) at paragraphs 9-12:
9 On
the one hand, in order to prove a claim to Convention refugee status, as I have
indicated above, claimants must prove on a balance of probabilities that there
is a serious possibility that they will be subject to persecution in their
country. If the possibility of an IFA is raised, the claimant must demonstrate
on a balance of probabilities that there is a serious possibility of
persecution in the area alleged to constitute an IFA. I recognize that, in some
cases the claimant may not have any personal knowledge of other areas of the
country, but, in all likelihood, there is documentary evidence available and,
in addition, the Minister will normally offer some evidence supporting the IFA
if the issue is raised at the hearing.
10 On the other hand,
there is an onus on the Minister and the Board to warn the claimant if an IFA
is going to be raised. A refugee claimant enjoys the benefit of the principles
of natural justice in hearings before the Refugee Division. A basic and
well-established component of the right to be heard includes notice of the case
to be met (see, for example, Kane v. Board of Governors (University of
British Columbia), [1980] 1 S.C.R. 1105, at page 1114). The
purpose of this notice is, in turn, to allow a person to prepare an adequate
response to that case. This right to notice of the case against the claimant is
acutely important where the claimant may be called upon to provide evidence to
show that no valid IFA exists in response to an allegation by the Minister.
Therefore, neither the Minister nor the Refugee Division may spring the
allegation of an IFA upon a complainant without notice that an IFA will be in
issue at the hearing. As was explained by Mr. Justice Mahoney in Rasaratnam,
supra, at pages 710-711:
[A] claimant is not to be expected to raise
the question of an IFA nor is an allegation that none exists simply to be
inferred from the claim itself. The question must be expressly raised at the
hearing by the refugee hearing officer or the Board and the claimant afforded
the opportunity to address it with evidence and argument.
These two very different obligations,
therefore, should be carefully distinguished.
11 Finally, what threshold
must an IFA meet before claimants will be required to avail themselves of it
rather than seeking international refugee protection? The UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status suggests that a person
will not be prohibited from claiming Convention refugee status "if under all
the circumstances it would not be reasonable to expect" that person to
seek internal refuge (at page 22). However, the reasonableness standard
suggested by the Handbook is very brief and it does not seem to me to express
clearly enough the basis of the IFA. Professor Hathaway, in The Law of Refugee
Status, at page 134 has suggested the following:
The logic of the internal protection principle
must, however, be recognized to flow from the absence of a need for asylum
abroad. It should be restricted in its application to persons who can genuinely
access domestic protection, and for whom the reality of protection is
meaningful. In situations where, for example, financial, logistical, or other
barriers prevent the claimant from reaching internal safety; where the quality
of internal protection fails to meet basic norms of civil, political, and
socio-economic human rights; or where internal safety is otherwise illusory or
unpredictable, state accountability for the harm is established and refugee
status is appropriately recognized
Professor Hathaway's explanation is helpful but
it does not quite achieve the appropriate balance between the purposes of
international protection for refugees and the availability of an internal
flight alternative.
12 Mahoney J.A. expressed
the position more accurately in Rasaratnam, supra, at page 711:
In my opinion, in finding the IFA, the Board
was required to be satisfied, on a balance of probabilities, that there was no
serious possibility of the appellant being persecuted in Colombo and that, in
all the circumstances including circumstances particular to him, conditions in
Colombo were such that it would not be unreasonable for the appellant to seek
refuge there.
Thus, IFA must be sought, if it is not
unreasonable to do so, in the circumstances of the individual claimant. This
test is a flexible one that takes into account the particular situation of the
claimant and the particular country involved. This is an objective test and the
onus of proof rests on the claimant on this issue, just as it does with all the
other aspects of a refugee claim. Consequently, if there is a safe haven for
claimants in their own country, where they would be free of persecution, they
are expected to avail themselves of it unless they can show that it is
objectively unreasonable for them to do so.
[11]
In
other words, the Applicant in the present case says his right to be heard
includes notice of the case to be met and, because he was not alerted to the
IFA issue, he had no idea of the case he had to meet.
[12]
The
Respondent says that a PRRA application is different from an RPD hearing. An
RPD hearing is adversarial and notice of an IFA is required in a situation
where cross-examination on viva voce evidence occurs. The PRRA process,
on the other hand, takes place almost entirely in writing and the onus is upon
an applicant to provide all of the materials necessary to make his or her case.
[13]
The
Respondent also takes the position that the Applicant in this case actually had
notice that an IFA was an issue he needed to deal with in his PRRA application.
To begin with, the CIC Operations Manual on Pre-Removal Risk Assessments (PP3)
explicitly deals with the issue under section 10 of Procedures and Guidelines
which says that “… when assessing an application, all applicable grounds must
be considered and applied.” Section 10.8 goes on to say that “when considering
an application for protection, the decision maker must be alert to the
possibility that the applicant, although at risk in one part of the country of
return, might reasonably be expected to obtain protection at some other
locality within that country. In such a situation, the applicant can be denied
protection because they could avail themselves of an ‘Internal Flight
Alternative.’”
[14]
The
Respondent says that the Applicant was represented by counsel at all material
times, so he must be taken to have known that an IFA was an issue he needed to
address in his PRRA application.
[15]
In
addition, the Respondent points out that the Applicant in the present case,
even though he did not have a refugee hearing where notice of an IFA would have
alerted him to the issue, did go through a IAD appeal at which an IFA was
raised and addressed. The Officer even refers to this fact in the Decision:
“The IAD also found that ‘there would be no valid reason why he could not live
in Colombo.’” The IAD
was dealing with hardship rather than risk, but the IAD did bring up and
address the Colombo issue, so
that the Applicant was aware that an IFA in Colombo was
something he needed to address in his PRRA application.
[16]
As
the Applicant points out, notice of an IFA is important in the Refugee context
because an applicant cannot possibly anticipate every place in a country which
the RPD might consider as a suitable IFA. In the present case, because the
Applicant did not go through a refugee claim process, he says he is in the same
position and so cannot be expected to know what a PRRA officer might consider
as a suitable IFA. The only difference is that, on the present facts, the IAD
raised Colombo as an IFA; but the Applicant questions whether this gave him sufficient
notice that he would need to deal with Colombo in his PRRA
claim. He says the connection is not strong enough to satisfy the requirement
of natural justice that an applicant must know the case he has to meet.
[17]
The
parties say there is no case law on the fundamental point of whether notice of an
IFA is required in the context of a PRRA application.
[18]
In
Demirovic v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1560, Justice Dawson
reviewed a PRRA decision in a context where the applicant’s claim to refugee
status had been summarily dismissed because he had been found to be
inadmissible under subsection 35(1)(a) of the Act. Justice Dawson had
the following to say at paragraphs 31 and 32:
31 Mr.
Demirovic notes that, in her decision, the officer held that even if he was
afraid of the Serbian extremists or paramilitary groups in Banja Luka, he could
safely take up residence elsewhere within Bosnia. Mr. Demirovic submits that this is a finding
that he had an IFA outside of Banja Luka. He further submits that, in
order for a decision-maker to render a decision on the basis of an IFA, notice
that this may be in issue must first be provided to an applicant, prior to the
rendering of the decision thus affording an opportunity to adduce evidence to
contradict the existence of an IFA. No evidence exists on the record in this
case to suggest that such notice was provided to Mr. Demirovic. Therefore, the
failure to provide such notice is said to be a breach of natural justice
warranting intervention by this Court. Reliance is placed upon the decision of
the Federal Court of Appeal in Rasaratnam v. Canada (Minister
of Employment and Immigration), [1992] 1 F.C. 706.
32 In the present case, it
is sufficient for me to conclude that prior to mentioning that Mr. Demirovic
might be safe elsewhere in Bosnia, the officer had already determined that,
while Mr. Demirovic might face difficulties in the form of harassment or discrimination
in Banja Luka, these difficulties would not constitute cruel and unusual
treatment or punishment, a risk to life, or a danger of torture. Therefore, I
find that the officer's finding regarding the possibility of Mr. Demirovic
living safely elsewhere was an extraneous observation that does not affect the
validity of the decision that Mr. Demirovic faced no section 97 risk in Bosnia
and Herzegovina.
[19]
In
the present situation, the IFA finding is central to the Decision and cannot be
called extraneous. What is more, the Officer found that it would be reasonable
for the Applicant to relocate to Colombo because of the large population of
Tamils there and because the Applicant was born, and had resided, in Sri Lanka for 14
years.
[20]
The
Applicant says that, had he known that IFA would be an issue, he could have
addressed material facts pertinent to the Officer’s conclusion concerning a
viable IFA in Colombo.
[21]
I
think the decision before me on this issue is a factual one. In the context of
a refugee claim, we know from Thirunavukkarasu at paragraph 10 that a
warning that an IFA is going to be raised is important because “a refugee
claimant enjoys the benefit of the principles of natural justice in hearings
before the Refugee Division. A basic and well-established component of the
right to be heard includes notice of the case to be met.”
[22]
Under
a PRRA application, an applicant also enjoys the benefit of the principles of
natural justice and the right to be heard. But a PRRA application is different
from a refugee claim and is usually preceded by other proceedings that may,
depending upon the nature of those proceedings and the full facts of the case,
alert an applicant to the importance of an IFA in the assessment of risk. In
the present case the Applicant must be taken to have known the following:
a.
That
in a PRRA application the onus is upon him to bring forward all information and
evidence necessary to prove the risks he faces (normally this will only be new
evidence because of a prior refugee claim, but not always);
b.
That
under the CIC Operations Manual (PP3) he might be denied protection if he has
an IFA available to him although, in my view, this does not mean that he will
know, or can know, where that IFA might be, unless he has been alerted to it in
previous proceedings;
c.
That
in considering hardship, though not risk, the IAD had already raised IFA with
him at his appeal hearing and found that “there would be no valid reason why he
could not live in Colombo.”
[23]
The
Applicant was represented by legal counsel at all material times. On the facts
of this case, then, I do not see how the Applicant could not have been aware
that he would have to deal with the Colombo IFA issue when it came to
presenting his case for risk under his PRRA application. He had to know that
the IAD decision was part of the record before the PRRA Officer and that it had
already been concluded that there was no valid reason why he should not go to Colombo. The
Applicant must also be taken to have known that the PRRA process, except where
credibility is an issue, takes place in writing and that it was up to him to
present his full case for risk in writing. In other words, on these facts, I
think the Applicant did have reasonable notice that he would need to explain
why he could not go to Colombo to avoid the risks he
placed before the PRRA Officer.
[24]
The
Applicant has raised several other issues in this application which I have
examined. I do not think that, when read in the full context of the Decision, the
Officer applied too high an evidentiary standard by the use of the words “has
not persuaded me,” “would come to the attention of the LTTE,” and the like.
These words are qualified and underwritten by the Officer’s obvious knowledge
of the correct standards to be applied as expressed elsewhere in the Decision.
[25]
Nor
do I believe that the Officer’s failure to specifically address the UNHCR’s
statement concerning the “LTTE’s capacity to track down and target its
opponents throughout the country” is a reviewable error, given the vast amount
of evidence that the Officer did consider and that this is a single phrase
which is qualified in the UNHCR report by the words “it does not necessarily
mean …” And I do not think that the Officer can be taken to have ignored other
relevant evidence that was before him.
[26]
More
significant, in my view, is the complaint that the Officer relied upon
extrinsic evidence and, in particular, the South Asia Terrorism Portal articles
referred to in the Sources Consulted section of the Decision.
[27]
The
Decision relied upon recent materials in accordance with the Officer’s duty to
consult the most recent sources of information: Lima v. Canada
(Minister of Citizenship and Immigration) 2008 FC 222 at
paragraph 13. It is well established that an officer is not limited to
materials furnished by an applicant and is not obliged to disclose, prior to
making a decision, all the information consulted where the information consists
of commonly consulted public information as opposed to novel and significant
information which may affect the disposition of the matter: Mancia v. Canada
(Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.) (Mancia)
at paragraph 22.
[28]
Because
the Applicant has the onus of providing evidence to support his position, there
was nothing to prevent him from providing more up-to-date materials to the
Officer before the Decision was made on June 5, 2008.
[29]
It
is clear from Mancia that the Officer had no obligation to disclose
documents relied upon from public sources in relation to general country
conditions.
[30]
I
have no evidence before me that any of the sources consulted by the Officer in
the present case were not available from public sources. Some of them look very
familiar and even the South Asia Terrorism Portal has not been shown to be
unavailable from public sources. And even though it is clear that the
information in these documents was used by the Officer to deal with his IFA
findings, I am not convinced that they reveal anything that was novel,
significant and/or evidenced changes in the general country condition that
affected the Decision.
[31]
The
Applicant conceded in argument that the important issue was notice of the IFA
in this case and that, absent that issue, his other complaints would not be
sufficient to render the Decision unreasonable. I agree with that position.
However, for reasons already discussed, I cannot accept the Applicant’s
position on an IFA notice on these facts. Hence, I do not think that the
Decision was either unreasonable within the meaning of Dunsmuir or that it
was incorrect because the Applicant was not afforded procedural fairness.
[32]
Counsel
are requested to serve and file any submissions with respect to certification
of a question of general importance within seven days of receipt of these
Reasons for Judgment. Each party will have a further period of three days to
serve and file any reply to the submission of the opposite party Following
that, a Judgment will be issued.
“James
Russell”
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